Com. v. Frick, M. ( 2019 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MARY FRICK, : No. 70 EDA 2018
:
Appellant :
Appeal from the Judgment of Sentence, November 30, 2017,
in the Court of Common Pleas of Montgomery County
Criminal Division at No. CP-46-SA-0000390-2017
BEFORE: SHOGAN, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 23, 2019
Mary Frick appeals from the November 30, 2017 judgment of sentence
entered in the Court of Common Pleas of Montgomery County following her
summary convictions in a trial de novo of harassment (engages in a course
of conduct or repeatedly commits acts which serve no legitimate purpose) and
criminal mischief (intentionally damages real or personal property of
another).1 Appellant received a sentence of 48 hours of incarceration on the
harassment conviction and an aggregate $600 fine.2 We affirm.
1 18 Pa.C.S.A. §§ 2709(a)(3) and 3304(a)(5), respectively.
2 Appellant’s period of incarceration for the harassment conviction was to
commence on January 3, 2018. Appellant was found guilty of criminal
mischief with no assigned penalty. (Order of court, 11/30/17.) Appellant was
fined $300 on each conviction for an aggregate of $600. (See id.; see also
trial court opinion, 6/14/18 at 3 (citing trial transcript 60:12-14).)
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The trial court set forth the following factual history:
The case grew out of a running dispute [appellant]
had with a couple who had moved into a townhouse
next to hers.
The evidence at trial showed, and the Court found,
that [appellant] over many months engaged in a
course of conduct of directing abusive language,
offensive gestures, and provocative signs at the
neighbors along the property line where her driveway
and theirs adjoined, twice throwing dog feces onto
their property, and once deliberately using her car to
knock over a 400-pound planter--which the neighbors
had placed on their side of the line to prevent
[appellant] from parking too close to their
automobiles and hitting them with [appellant’s] car
door--spilling the planter’s contents onto the ground.
The Court received evidence of [appellant’s] conduct
toward the neighbors consisting of photographs and
videotapes the couple had made as well as oral
descriptions by the man, who testified that as a result
of the conduct the couple had to move out of the
house less than two years after purchasing it.
Trial court opinion, 6/14/18 at 1-2.
The record reflects that at the conclusion of the Commonwealth’s case,
appellant moved for a judgment of acquittal on the basis, inter alia, that
there was no evidence of damage to the planter to support the charge of
criminal mischief. The trial court denied appellant’s motion.
Following sentencing, appellant filed a post-sentence motion to modify
the sentence which the trial court denied. Appellant filed a timely notice of
appeal. The trial court ordered appellant to file a statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely
complied. The trial court subsequently filed its Rule 1925(a) opinion.
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Appellant raises the following issue for our review:3
Did the Trial Court improperly find [appellant] guilty
of Criminal Mischief pursuant to 18 Pa.C.S.[A.]
§ 3304(a)(5) when the evidence was insufficient as a
matter of law to find [appellant] guilty of that offense?
Appellant’s brief at 2.
Our standard and scope of review for a sufficiency of the evidence claim
is well settled.4
The standard we apply in reviewing the sufficiency of
the evidence is whether viewing all the evidence
admitted at trial in the light most favorable to the
verdict winner, there is sufficient evidence to enable
the fact-finder to find every element of the crime
beyond a reasonable doubt. In applying the above
test, we may not weigh the evidence and substitute
our judgment for the fact-finder. In addition, we note
that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter
3 We note that although appellant raised three issues in her Rule 1925(b)
statement, appellant abandoned two of those issues on appeal.
4 We acknowledge the Commonwealth’s argument in its brief that appellant
waived her sufficiency claim because appellant failed to provide a complete
record for purposes of appeal in that appellant did not provide the videotapes
as part of the record. In reviewing the record, we find that three of the four
videotape exhibits relate to the conviction for harassment which appellant
does not raise on appeal. (Trial transcript, 6/18/18 at 18-27.) The contents
of the final videotape, Exhibit “C-2,” were described by the trial court as:
“[T]here’s a video of [appellant] coming out of her house, getting into this car,
backing in her driveway[,] and deliberately crashing into the flower box.”
(Trial court opinion, 6/14/18 at 13.) In light of the trial court’s description of
what the videotape showed, we do not find the videotape “necessary to allow
a complete and judicious assessment of the issues raised on appeal.”
Commonwealth v. Wint, 730 A.2d 965, 967 (Pa.Super. 1999) (citation
omitted). Therefore, we find no waiver of appellant’s claim.
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of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may
sustain its burden of proof or proving every element
of the crime beyond a reasonable doubt by means of
wholly circumstantial evidence. Moreover, in applying
the above test, the entire record must be evaluated
and all the evidence actually received must be
considered. Finally, the trier of fact while passing
upon the credibility of witnesses and the weight of the
evidence produced, is free to believe all, part or none
of the evidence.
Commonwealth v. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004)
(citation omitted).
Criminal mischief is defined as:
§ 3304. Criminal mischief
(a) Offense defined.--A person is guilty of
criminal mischief if he:
....
(5) intentionally damages real or
personal property of another.
18 Pa.C.S.A. § 3304(a)(5).
Here, appellant argues that a conviction of criminal mischief under
18 Pa.C.S.A. § 3304(a)(5) requires some type of actual, physical, or visible
damage to the property to be proven and that the trial court erred in finding
damage to the planter had been established. (Appellant’s brief at 10.) We
disagree.
In viewing the evidence in the light most favorable to the
Commonwealth, as the verdict winner, this court finds that there is sufficient
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evidence to support the trial court’s finding of the element of damage to the
victim’s property beyond a reasonable doubt to support the conviction of
criminal mischief. The trial court found damage to the planter when appellant,
using her automobile, caused the planter to topple and spill its contents onto
the victim’s driveway to the extent the victim had to undertake significant
efforts to clean up the spill and rebuild the planter to withstand further blows.
(Trial court opinion, 6/14/18 at 14.) This finding of damage is supported by
the photographs the trial court viewed of the planter toppled and its contents
spilled on the victim’s driveway; the testimony of the victim that the planter
had been toppled, its contents spilled, and the efforts the victim took to
remedy the situation; and the videotape which the trial court described as
showing appellant driving into the planter with her automobile.5 This court
has held that for purposes of criminal mischief, damage to the victim’s
property need not be permanent, only that some type of damage was done.
See Commonwealth v. Vida, 715 A.2d 1180, 1181 (Pa.Super. 1998)
(finding that to obtain a criminal mischief conviction, damage “does not by
definition mean permanent damage”). In this case, the evidence shows
beyond a reasonable doubt that the planter, in its up-right position, was not
the same immediately following appellant’s act of hitting the planter with her
automobile. After appellant’s act, the planter was toppled and its contents
5 Appellant admits that the planter was toppled. (Appellant’s brief at 10 (“all
that happened was that the planter was tipped over.”).)
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spilled, thereby establishing the element of damage for purposes of criminal
mischief. Therefore, appellant’s claim fails.
Judgment of sentence affirmed.
Murray, J. joins this Memorandum.
Shogan, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/23/19
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